WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under s. 276.3 of the Criminal Code shall continue. This section of the Criminal Code provides:

276.3 (1) No person shall publish in any document, or broadcast or transmit in any way, any of the following:

(a) the contents of an application made under section 276.1;

(b) any evidence taken, the information given and the representations made at an application under section 276.1 or at a hearing under section 276.2;

(c) the decision of a judge or justice under subsection 276.1(4), unless the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the decision may be published, broadcast or transmitted; and

(d) the determination made and the reasons provided under section 276.2, unless

(i) that determination is that evidence is admissible, or

(ii) the judge or justice, after taking into account the complainant’s right of privacy and the interests of justice, orders that the determination and reasons may be published, broadcast or transmitted.

Offence

(2) Every person who contravenes subsection (1) is guilty of an offence punishable on summary conviction; 1992, c. 38, s. 2; 2005, c. 32, s. 13.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Green, 2013 ONCA 74

DATE: 20130206

DOCKET: C53413

Doherty, Simmons and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Bruce Allen Green

Appellant

Sherri J. Beattie, for the appellant

Scott Latimer, for the respondent

Heard and released orally: January 28, 2013

On appeal from the conviction entered by Justice W. MacPherson of the Superior Court of Justice, dated October 25, 2010 and the sentence imposed on October 25, 2010.

ENDORSEMENT

[1] The appeal turns on the admissibility of the evidence that the complainant had on two prior occasions alleged that she had been sexually assaulted only to later recant those allegations. In our view, evidence of the allegations/recantations does not engage s. 276. That evidence does not involve evidence of sexual activity. The admissibility of this evidence turns on questions of relevance and the proper application of the collateral fact rule.

[2] We think that the allegations/recantations questions were clearly relevant to the credibility of the complainant’s allegation against the appellant. Nor, in our view, was their relevance such that it could be said the evidence had minimal probative value. The questions were, therefore, proper questions to put to the complainant on cross-examination.

[3] We are also satisfied that the evidence of the recantations, at least to the extent that the evidence of the recantations came from the witness, Landry, was not collateral and was, therefore, properly the subject of further evidence. According to Landry, the complainant made the recantations to her in the very same conversation in which the complainant alleged she had been sexually assaulted by the appellant. The Crown led evidence of that conversation to support the allegation against the appellant. The contents of the conversation were not, therefore, collateral.

[4] Cross-examination of the complainant on the alleged recantations to Ms. Landry could have assisted not only in assessing the complainant’s general credibility, but also in assessing the very reliability of her statement to Ms. Landry that she had just been sexually assaulted by the appellant.

[5] The defence could have led evidence from Ms. Landry to contradict the complainant if the complainant in cross-examination denied making the recantations to Ms. Landry. On this record, we have no idea what the complainant’s response to those questions would have been.

[6] We need not decide whether evidence from the appellant to the effect that the complainant had recanted the “babysitter” allegation a few weeks earlier could also have been admitted had the complainant denied making the recantation.

[7] The trial judge properly excluded the evidence of the police officer regarding the “landlord” incident, one of the two incidents that led to the s. 276 hearing. The police officer’s evidence about his investigation and his opinion as to the complainant’s veracity had nothing to do with whether the complainant had made an allegation of sexual assault that she subsequently recanted. We stress that it is the combination of the allegation and the recantation that make this evidence relevant to the complainant’s credibility.

[8] We see no merit in the unreasonable verdict argument. There was ample evidence to support the trial judge’s finding of guilt.

[9] We cannot say that the error made with respect to the allegations/recantations evidence was harmless in the context of this record.

[10] The appeal must be allowed, the conviction quashed and a new trial ordered.

“Doherty J.A.”

“Janet Simmons J.A.”

“M. Tulloch J.A.”